75R14452 DLF-F
By Zaffirini S.B. No. 55
Substitute the following for S.B. No. 55:
By Longoria C.S.S.B. No. 55
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the sale, distribution, and use of
1-3 tobacco products; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS
1-6 SECTION 1.01. Subchapter H, Chapter 161, Health and Safety
1-7 Code, is amended to read as follows:
1-8 SUBCHAPTER H. DISTRIBUTION [SALE] OF CIGARETTES OR TOBACCO
1-9 PRODUCTS [TO MINORS]
1-10 Sec. 161.081. DEFINITIONS. In this subchapter:
1-11 (1) "Cigarette" has the meaning assigned by Section
1-12 154.001, Tax Code.
1-13 (2) "Permit holder" has the meaning assigned by
1-14 Section 154.001 or 155.001, Tax Code, as applicable.
1-15 (3) "Retail sale" means a transfer of possession from
1-16 a retailer to a consumer in connection with a purchase, sale, or
1-17 exchange for value of cigarettes or tobacco products.
1-18 (4) "Retailer" has the meaning assigned by Section
1-19 154.001 or 155.001, Tax Code, as applicable.
1-20 (5) "Tobacco product" has the meaning assigned by
1-21 Section 155.001, Tax Code.
1-22 (6) "Wholesaler" has the meaning assigned by Section
1-23 154.001 or 155.001, Tax Code, as applicable.
1-24 Sec. 161.082. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
2-1 PERSONS YOUNGER THAN 18 YEARS OF AGE [MINORS] PROHIBITED; PROOF OF
2-2 AGE REQUIRED. (a) A person commits an offense if the person, with
2-3 criminal negligence [as a commercial enterprise]:
2-4 (1) sells, gives, or causes to be sold or given a
2-5 cigarette or [other] tobacco product to someone who [the person
2-6 knows] is younger than 18 years of age; or
2-7 (2) sells, gives, or causes to be sold or given a
2-8 cigarette or [other] tobacco product to another person who[,
2-9 knowing that the person receiving the cigarette or other tobacco
2-10 product] intends to deliver it to someone who is younger than 18
2-11 years of age.
2-12 (b) If an offense under this section occurs in connection
2-13 with a sale by an employee of the owner of a store in which
2-14 cigarettes or tobacco products are sold at retail, the employee is
2-15 criminally responsible for the offense and is subject to
2-16 prosecution.
2-17 (c) An offense under this section is a Class C misdemeanor.
2-18 (d) [(c)] It is a defense to prosecution under Subsection
2-19 (a)(1) [this section] that the person to whom the cigarette or
2-20 [other] tobacco product was sold or given presented to the
2-21 defendant [an] apparently valid proof of [Texas driver's license or
2-22 an] identification.
2-23 (e) A proof of identification satisfies the requirements of
2-24 Subsection (d) if it contains [card, issued by the Department of
2-25 Public Safety and containing] a physical description and photograph
2-26 consistent with the person's appearance, purports [that purported]
2-27 to establish that the person is [was] 18 years of age or older, and
3-1 was issued by a governmental agency. The proof of identification
3-2 may include a driver's license issued by this state or another
3-3 state, a passport, or an identification card issued by a state or
3-4 the federal government.
3-5 Sec. 161.083. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
3-6 PERSONS YOUNGER THAN 27 YEARS OF AGE. (a) Pursuant to federal
3-7 regulation under 21 C.F.R. Section 897.14(b), a person may not
3-8 sell, give, or cause to be sold or given a cigarette or tobacco
3-9 product to someone who is younger than 27 years of age unless the
3-10 person to whom the cigarette or tobacco product was sold or given
3-11 presents an apparently valid proof of identification.
3-12 (b) A retailer shall adequately supervise and train the
3-13 retailer's agents and employees to prevent a violation of
3-14 Subsection (a).
3-15 (c) A proof of identification described by Section
3-16 161.082(e) satisfies the requirements of Subsection (a).
3-17 (d) Notwithstanding any other provision of law, a violation
3-18 of this section is not a violation of this subchapter for purposes
3-19 of Section 154.1142 or 155.0592, Tax Code.
3-20 Sec. 161.084 [161.082]. WARNING NOTICE. (a) Each person
3-21 who sells cigarettes or tobacco products at retail or by vending
3-22 machine shall post a sign in a location that is conspicuous to all
3-23 employees and customers and that is close to the place at which the
3-24 cigarettes or tobacco products may be purchased.
3-25 (b) The sign must include the statement:
3-26 PURCHASING OR ATTEMPTING TO PURCHASE
3-27 TOBACCO PRODUCTS BY A MINOR UNDER 18 YEARS
4-1 OF AGE IS PROHIBITED BY LAW. SALE OR
4-2 PROVISION OF TOBACCO PRODUCTS TO A MINOR
4-3 UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW.
4-4 UPON CONVICTION, A CLASS C MISDEMEANOR,
4-5 INCLUDING A [MAXIMUM] FINE OF UP TO $500,
4-6 [$200] MAY BE IMPOSED. VIOLATIONS MAY BE
4-7 REPORTED TO THE TEXAS COMPTROLLER'S OFFICE
4-8 BY CALLING (insert toll-free telephone
4-9 number).
4-10 (c) The comptroller [board] by rule shall determine the
4-11 design and size of the sign.
4-12 (d) The comptroller [department] on request shall provide
4-13 the sign without charge to any person who sells cigarettes or
4-14 tobacco [cigarette] products. The comptroller [department] may
4-15 provide the sign without charge to [cigarette] distributors of
4-16 cigarettes or tobacco products or wholesale dealers of cigarettes
4-17 or tobacco [cigarette] products in this state for distribution to
4-18 persons who sell cigarettes or tobacco [cigarette] products. A
4-19 distributor or wholesale dealer may not charge for distributing a
4-20 sign under this subsection.
4-21 (e) A person commits an offense if the person intentionally
4-22 fails to display a sign as prescribed by this section. An offense
4-23 under this subsection is a Class C misdemeanor.
4-24 Sec. 161.085. NOTIFICATION OF EMPLOYEES AND AGENTS. (a)
4-25 Each permit holder shall notify each individual employed by that
4-26 permit holder who is to be engaged in retail sales of cigarettes or
4-27 tobacco products that state law:
5-1 (1) prohibits the sale or distribution of cigarettes
5-2 or tobacco products to any person who is younger than 18 years of
5-3 age as provided by Section 161.082 and that a violation of that
5-4 section is a Class C misdemeanor; and
5-5 (2) requires each person who sells cigarettes or
5-6 tobacco products at retail or by vending machine to post a warning
5-7 notice as provided by Section 161.084, requires each employee to
5-8 ensure that the appropriate sign is always properly displayed while
5-9 that employee is exercising the employee's duties, and provides
5-10 that an intentional violation of Section 161.084 is a Class C
5-11 misdemeanor.
5-12 (b) The notice required by Subsection (a) must be provided
5-13 within 72 hours of the date an individual begins to engage in
5-14 retail sales of tobacco products. The individual shall signify
5-15 that the individual has received the notice required by Subsection
5-16 (a) by signing a form stating that the law has been fully
5-17 explained, that the individual understands the law, and that the
5-18 individual, as a condition of employment, agrees to comply with the
5-19 law.
5-20 (c) Each form signed by an individual under this section
5-21 shall indicate the date of the signature and the current address
5-22 and social security number of the individual. The permit holder
5-23 shall retain the form signed by each individual employed as a
5-24 retail sales clerk until the 60th day after the date the individual
5-25 has left the employer's employ.
5-26 (d) A permit holder required by this section to notify
5-27 employees commits an offense if the permit holder fails, on demand
6-1 of a peace officer or agent of the comptroller, to provide the
6-2 notice prescribed by this section. An offense under this section
6-3 is a Class C misdemeanor.
6-4 (e) It is a defense to prosecution under Subsection (d) to
6-5 show proof that the employee did complete, sign, and date the
6-6 notice required by Subsection (a). Proof must be shown to the
6-7 comptroller or an agent of the comptroller within 72 hours of the
6-8 offense.
6-9 Sec. 161.086. VENDOR ASSISTED SALES REQUIRED; VENDING
6-10 MACHINES. (a) Except as provided by Subsection (b), a retailer or
6-11 other person may not:
6-12 (1) offer cigarettes or tobacco products for sale in a
6-13 manner that permits a customer direct access to the cigarettes or
6-14 tobacco products; or
6-15 (2) install or maintain a vending machine containing
6-16 cigarettes or tobacco products.
6-17 (b) Subsection (a) does not apply to a facility or business
6-18 that is not open to persons younger than 18 years of age at any
6-19 time.
6-20 (c) The comptroller or a peace officer may, with or without
6-21 a warrant, seize, seal, or disable a vending machine installed or
6-22 maintained in violation of this section. Property seized under
6-23 this subsection must be seized in accordance with, and is subject
6-24 to forfeiture to the state in accordance with, Subchapter H,
6-25 Chapter 154, Tax Code, and Subchapter E, Chapter 155, Tax Code.
6-26 (d) A person commits an offense if the person violates
6-27 Subsection (a). An offense under this subsection is a Class C
7-1 misdemeanor.
7-2 Sec. 161.087. DISTRIBUTION OF CIGARETTES OR TOBACCO
7-3 PRODUCTS. (a) A person may not distribute to persons younger than
7-4 18 years of age:
7-5 (1) a free sample of a cigarette or tobacco product;
7-6 or
7-7 (2) a coupon or other item that the recipient may use
7-8 to receive a free or discounted cigarette or tobacco product or a
7-9 sample cigarette or tobacco product.
7-10 (b) Except as provided by Subsection (c), a permit holder
7-11 may not accept or redeem, offer to accept or redeem, or hire a
7-12 person to accept or redeem a coupon or other item that the
7-13 recipient may use to receive a free or discounted cigarette or
7-14 tobacco product or a sample cigarette or tobacco product if the
7-15 recipient is younger than 18 years of age. A coupon or other item
7-16 that a recipient may use to receive a free or discounted cigarette
7-17 or tobacco product or a sample cigarette or tobacco product may not
7-18 be redeemable through mail or courier delivery.
7-19 (c) Subsections (a)(2) and (b) do not apply to a transaction
7-20 between permit holders unless the transaction is a retail sale.
7-21 (d) A person commits an offense if the person violates this
7-22 section. An offense under this subsection is a Class C
7-23 misdemeanor.
7-24 Sec. 161.088. ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a)
7-25 The comptroller shall enforce this subchapter in partnership with
7-26 county sheriffs and municipal chiefs of police and with their
7-27 cooperation and shall ensure the state's compliance with Section
8-1 1926 of the federal Public Health Service Act (42 U.S.C. Section
8-2 300x-26) and any implementing regulations adopted by the United
8-3 States Department of Health and Human Services. Except as
8-4 expressly authorized by law, the comptroller may not adopt any
8-5 rules governing the subject matter of this subchapter or Subchapter
8-6 K, N, or O.
8-7 (b) The comptroller may make block grants to counties and
8-8 municipalities to be used by county sheriffs and municipal chiefs
8-9 of police to enforce this subchapter in a manner that can
8-10 reasonably be expected to reduce the extent to which cigarettes and
8-11 tobacco products are sold or distributed to persons who are younger
8-12 than 18 years of age. At least annually, random unannounced
8-13 inspections shall be conducted at various locations where
8-14 cigarettes and tobacco products are sold or distributed to ensure
8-15 compliance with this subchapter. The comptroller shall rely, to
8-16 the fullest extent possible, on sheriffs or chiefs of police or
8-17 their employees to enforce this subchapter.
8-18 (c) To facilitate the effective administration and
8-19 enforcement of this subchapter, the comptroller may enter into
8-20 interagency contracts with other state agencies, and those agencies
8-21 may assist the comptroller in the administration and enforcement of
8-22 this subchapter.
8-23 (d) The use of a person younger than 18 years of age to act
8-24 as a minor decoy to test compliance with this subchapter shall be
8-25 conducted in a fashion that promotes fairness. A person may be
8-26 enlisted by the comptroller to act as a minor decoy only if the
8-27 following requirements are met:
9-1 (1) written parental consent is obtained for the use
9-2 of a person younger than 18 years of age to act as a minor decoy to
9-3 test compliance with this subchapter;
9-4 (2) at the time of the inspection, the minor decoy is
9-5 younger than 17 years of age;
9-6 (3) the minor decoy has an appearance that would cause
9-7 a reasonably prudent seller of cigarettes or tobacco products to
9-8 request identification and proof of age;
9-9 (4) the minor decoy carries either the minor's own
9-10 identification showing the minor's correct date of birth or carries
9-11 no identification, and a minor decoy who carries identification
9-12 presents it on request to any seller of cigarettes or tobacco
9-13 products; and
9-14 (5) the minor decoy answers truthfully any questions
9-15 about the minor's age.
9-16 (e) The comptroller shall annually prepare for submission by
9-17 the governor to the secretary of the United States Department of
9-18 Health and Human Services the report required by Section 1926 of
9-19 the federal Public Health Service Act (42 U.S.C. Section 300x-26).
9-20 Sec. 161.089. PREEMPTION OF LOCAL LAW. This subchapter does
9-21 not preempt a local regulation of the sale, distribution, or use of
9-22 cigarettes or tobacco products or affect the authority of a
9-23 political subdivision to adopt or enforce an ordinance or
9-24 requirement relating to the sale, distribution, or use of
9-25 cigarettes or tobacco products if the regulation, ordinance, or
9-26 requirement:
9-27 (1) is compatible with and equal to or more stringent
10-1 than a requirement prescribed by this subchapter; or
10-2 (2) relates to an issue that is not specifically
10-3 addressed by this subchapter or Chapter 154 or 155, Tax Code.
10-4 Sec. 161.090. REPORTS OF VIOLATION. A local or state law
10-5 enforcement agency or other governmental unit shall notify the
10-6 comptroller, on the 10th day of each month, or the first working
10-7 day after that date, of any violation of this subchapter that
10-8 occurred in the preceding month that the agency or unit detects,
10-9 investigates, or prosecutes.
10-10 ARTICLE 2. ADVERTISING OF CIGARETTES OR TOBACCO PRODUCTS
10-11 SECTION 2.01. Subchapter K, Chapter 161, Health and Safety
10-12 Code, is amended to read as follows:
10-13 SUBCHAPTER K. PROHIBITION OF CERTAIN CIGARETTE OR TOBACCO
10-14 PRODUCT ADVERTISING; FEE
10-15 Sec. 161.121. DEFINITIONS. In this subchapter:
10-16 (1) "Church" means a facility that is owned by a
10-17 religious organization and that is used primarily for religious
10-18 services.
10-19 (2) "Cigarette" has the meaning assigned by Section
10-20 154.001, Tax Code.
10-21 (3) "School" means a private or public elementary or
10-22 secondary school.
10-23 (4) [(3)] "Sign" means an outdoor medium, including a
10-24 structure, display, light device, figure, painting, drawing,
10-25 message, plaque, poster, or billboard, that is:
10-26 (A) used to advertise or inform; and
10-27 (B) visible from the main-traveled way of a
11-1 street or highway.
11-2 (5) [(4)] "Tobacco product" has the meaning assigned
11-3 by Section 155.001, Tax Code.
11-4 Sec. 161.122. PROHIBITION RELATING TO CERTAIN SIGNS;
11-5 EXCEPTIONS. (a) Except as provided by this section, a [A] sign
11-6 containing an advertisement for cigarettes or tobacco products may
11-7 not be located closer than 1,000 [500] feet to a church or school.
11-8 (b) The measurement of the distance between the sign
11-9 containing an advertisement for cigarettes or tobacco products and
11-10 an institution listed in Subsection (a) is from the nearest
11-11 property line of the institution to a point on a street or highway
11-12 closest to the sign, along street lines and in direct lines across
11-13 intersections.
11-14 (c) This section does not apply to[:]
11-15 [(1)] a sign located on or in a facility owned or
11-16 leased by a professional sports franchise or in a facility where
11-17 professional sports events are held at least 10 times during a
11-18 12-month period[; or]
11-19 [(2) a contract for a cigarette or other tobacco
11-20 product advertisement entered into before August 26, 1991].
11-21 (d) In Subsection (c)(1), a "facility" includes a stadium,
11-22 arena, or events center and any land or property owned or leased by
11-23 the professional sports franchise that is connected to or
11-24 immediately contiguous to the stadium, arena, or events center.
11-25 (e) Subsection (a) does not apply to a sign containing an
11-26 advertisement for cigarettes or tobacco products that, before
11-27 September 1, 1997, was located closer than 1,000 feet to a church
12-1 or school but that was not located closer than 500 feet to the
12-2 church or school.
12-3 Sec. 161.123. ADVERTISING FEE. (a) A purchaser of
12-4 advertising is liable for and shall remit to the comptroller a fee
12-5 that is 10 percent of the gross sales price of any outdoor
12-6 advertising of cigarettes and tobacco products in this state.
12-7 (b) The comptroller shall collect the fee and deposit the
12-8 money as provided in this section.
12-9 (c) The liability for the payment of fees under this section
12-10 may not be nullified by contract.
12-11 (d) The comptroller shall establish by rule the periods for
12-12 collection of the fees and the methods of payment and shall adopt
12-13 other rules necessary to administer and enforce this section.
12-14 (e) In this section, "gross sales price" means the sum of:
12-15 (1) production costs;
12-16 (2) media cost; and
12-17 (3) cost of sales or commissions paid to an agency or
12-18 broker.
12-19 Sec. 161.124. USE OF ADVERTISING FEE. (a) The comptroller
12-20 shall deposit the fee collected under Section 161.123 to a special
12-21 account in the state treasury called the tobacco education and
12-22 enforcement education fund.
12-23 (b) Money in the account may be appropriated only for
12-24 administration and enforcement of this section, enforcement of law
12-25 relating to cigarettes and tobacco products, and an education
12-26 advertising campaign relating to cigarettes and tobacco products.
12-27 Sec. 161.125. ADMINISTRATIVE PENALTY. (a) The comptroller
13-1 by order may impose an administrative penalty against a purchaser
13-2 of advertising required to comply with Section 161.123 who violates
13-3 that section or a rule or order adopted under that section.
13-4 (b) The penalty for a violation may be in an amount not to
13-5 exceed $5,000. Each day a violation continues or occurs is a
13-6 separate violation for purposes of imposing a penalty.
13-7 (c) The amount of the penalty shall be based on:
13-8 (1) the amount of fees due and owing;
13-9 (2) attempted concealment of misconduct by the person
13-10 who committed the violation;
13-11 (3) premeditated misconduct by the person who
13-12 committed the violation;
13-13 (4) intentional misconduct by the person who committed
13-14 the violation;
13-15 (5) the motive of the person who committed the
13-16 violation;
13-17 (6) prior misconduct of a similar or related nature by
13-18 the person who committed the violation;
13-19 (7) prior written warnings or written admonishments
13-20 from any government agency or official grading statutes or
13-21 regulations pertaining to the misconduct;
13-22 (8) violation by the person who committed the
13-23 violation of an order of the comptroller;
13-24 (9) lack of rehabilitative potential or likelihood for
13-25 future misconduct of a similar nature;
13-26 (10) relevant circumstances increasing the seriousness
13-27 of the misconduct; and
14-1 (11) any other matter justice may require.
14-2 (d) The comptroller shall prescribe the procedure by which
14-3 the comptroller may impose an administrative penalty under this
14-4 section.
14-5 (e) A proceeding under this section is subject to Chapter
14-6 2001, Government Code.
14-7 (f) If the comptroller by order finds that a violation has
14-8 occurred and imposes an administrative penalty, the comptroller
14-9 shall give notice to the person of the comptroller's order. The
14-10 notice must include a statement of the rights of the person to
14-11 judicial review of the order.
14-12 (g) If the purchaser of advertising does not pay the amount
14-13 of the penalty, the comptroller may refer the matter to the
14-14 attorney general for collection of the amount of the penalty.
14-15 (h) A penalty collected under this section shall be
14-16 deposited in the general revenue fund.
14-17 ARTICLE 3. YOUTH TOBACCO USE
14-18 SECTION 3.01. Chapter 161, Health and Safety Code, is
14-19 amended by adding Subchapters N and O to read as follows:
14-20 SUBCHAPTER N. TOBACCO USE BY MINORS
14-21 Sec. 161.251. DEFINITIONS. In this subchapter:
14-22 (1) "Cigarette" has the meaning assigned by Section
14-23 154.001, Tax Code.
14-24 (2) "Tobacco product" has the meaning assigned by
14-25 Section 155.001, Tax Code.
14-26 Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR RECEIPT
14-27 OF CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) An
15-1 individual who is younger than 18 years of age commits an offense
15-2 if the individual:
15-3 (1) possesses, purchases, consumes, or accepts a
15-4 cigarette or tobacco product; or
15-5 (2) falsely represents himself or herself to be 18
15-6 years of age or older by displaying proof of age that is false,
15-7 fraudulent, or not actually proof of the individual's own age in
15-8 order to obtain possession of, purchase, or receive a cigarette or
15-9 tobacco product.
15-10 (b) It is an exception to the application of this section
15-11 that the individual younger than 18 years of age possessed the
15-12 cigarette or tobacco product in the presence of:
15-13 (1) an adult parent, a guardian, or a spouse of the
15-14 individual; or
15-15 (2) an employer of the individual, if possession or
15-16 receipt of the tobacco product is required in the performance of
15-17 the employee's duties as an employee.
15-18 (c) It is an exception to the application of this section
15-19 that the individual younger than 18 years of age is participating
15-20 in an inspection or test of compliance in accordance with Section
15-21 161.088.
15-22 (d) An offense under this section is a Class C misdemeanor.
15-23 Sec. 161.253. TOBACCO AWARENESS PROGRAM; COMMUNITY SERVICE.
15-24 (a) On conviction of an individual for an offense under Section
15-25 161.252, the court shall suspend execution of sentence and shall
15-26 require the defendant to attend a tobacco awareness program
15-27 approved by the comptroller. The court may require the parent or
16-1 guardian of the defendant to attend the tobacco awareness program
16-2 with the defendant.
16-3 (b) On request, a tobacco awareness program may be taught in
16-4 languages other than English.
16-5 (c) If the defendant resides in a rural area of this state
16-6 or another area of this state in which access to a tobacco
16-7 awareness program is not readily available, the court shall require
16-8 the defendant to perform eight to 12 hours of tobacco-related
16-9 community service instead of attending the tobacco awareness
16-10 program.
16-11 (d) The tobacco awareness program and the tobacco-related
16-12 community service are remedial and are not punishment.
16-13 (e) Not later than the 90th day after the date of a
16-14 conviction under Section 161.252, the defendant shall present to
16-15 the court, in the manner required by the court, evidence of
16-16 satisfactory completion of the tobacco awareness program or the
16-17 tobacco-related community service.
16-18 (f) On receipt of the evidence required under Subsection
16-19 (e), the court shall execute the sentence but may reduce the fine
16-20 imposed to not less than half the fine previously imposed by the
16-21 court.
16-22 Sec. 161.254. DRIVER'S LICENSE SUSPENSION OR DENIAL.
16-23 (a) If the defendant does not provide the evidence required under
16-24 Section 161.253(e) within the period specified by that subsection,
16-25 the court shall order the Department of Public Safety to suspend or
16-26 deny issuance of any driver's license or permit to the defendant.
16-27 The order must specify the period of the suspension or denial,
17-1 which may not exceed 180 days after the date of the order.
17-2 (b) The Department of Public Safety shall send to the
17-3 defendant notice of court action under Subsection (a) by certified
17-4 mail, return receipt requested. The notice must include the date
17-5 of the order and the reason for the order and must specify the
17-6 period of the suspension or denial.
17-7 Sec. 161.255. EXPUNGEMENT OF CONVICTION. An individual
17-8 convicted of an offense under Section 161.252 may apply to the
17-9 court to have the conviction expunged. If the court finds that the
17-10 individual satisfactorily completed the tobacco awareness program
17-11 or tobacco-related community service ordered by the court, the
17-12 court shall order the conviction and any complaint, verdict,
17-13 sentence, or other document relating to the offense to be expunged
17-14 from the individual's record and the conviction may not be shown or
17-15 made known for any purpose.
17-16 Sec. 161.256. JURISDICTION OF COURTS. A justice court or
17-17 municipal court may exercise jurisdiction over any matter in which
17-18 a court under this subchapter may:
17-19 (1) impose a requirement that a defendant attend a
17-20 tobacco awareness program or perform tobacco-related community
17-21 service; or
17-22 (2) order the suspension or denial of a driver's
17-23 license or permit.
17-24 Sec. 161.257. APPLICATION OF OTHER LAW. Title 3, Family
17-25 Code, does not apply to a proceeding under this subchapter.
17-26 (Sections 161.258-161.300 reserved for expansion
18-1 SUBCHAPTER O. PREVENTION OF TOBACCO USE BY MINORS
18-2 Sec. 161.301. TOBACCO USE PUBLIC AWARENESS CAMPAIGN.
18-3 (a) The comptroller shall develop and implement a public awareness
18-4 campaign designed to reduce tobacco use by minors in this state.
18-5 The campaign may use advertisements or similar media to provide
18-6 educational information about tobacco use.
18-7 (b) The comptroller may contract with another person to
18-8 develop and implement the public awareness campaign, except that
18-9 the comptroller may not contract with any person or entity that is
18-10 required to register with the Texas Ethics Commission under Chapter
18-11 305, Government Code, or any partner, employee, employer, relative,
18-12 contractor, consultant, or related entity of such a person or
18-13 entity.
18-14 ARTICLE 4. RELATED TAX CODE PROVISIONS
18-15 SECTION 4.01. (a) Section 154.111, Tax Code, is amended by
18-16 amending Subsection (b) and adding Subsection (g) to read as
18-17 follows:
18-18 (b) An application for a permit required by this chapter
18-19 must be accompanied by a fee of:
18-20 (1) $300 [$100] for a bonded agent's permit;
18-21 (2) $300 [$100] for a distributor's permit;
18-22 (3) $200 [$50] for a wholesaler's permit; [and]
18-23 (4) $15 for each permit for a vehicle if the applicant
18-24 is also applying for a permit as a bonded agent, distributor, or
18-25 wholesaler or has received a current permit from the comptroller
18-26 [treasurer] under Sections 154.101 and 154.110; and
18-27 (5) $180 for a retailer's permit.
19-1 (g) Notwithstanding Subsection (b)(5), an application for a
19-2 retailer's permit issued or renewed before September 1, 1999, must
19-3 be accompanied by a fee of $125. This subsection expires December
19-4 31, 1999.
19-5 (b) Section 154.111(c), Tax Code, is repealed.
19-6 SECTION 4.02. Section 154.121, Tax Code, is amended to read
19-7 as follows:
19-8 Sec. 154.121. REVENUE. (a) Except as provided by
19-9 Subsection (b), revenue [Revenue] from the sale of permits to
19-10 distributors, wholesalers, and bonded agents is allocated in the
19-11 same manner as other revenue allocated by Subchapter J.
19-12 (b) Revenue from the sale of retailer's permits shall be
19-13 deposited to the general revenue fund and may be appropriated only
19-14 as provided by this section. The money may be appropriated first
19-15 to the comptroller for administration of licensing of retailers
19-16 under this chapter or Chapter 155.
19-17 (c) If, after any appropriation is made under Subsection
19-18 (b), revenue remains from the sale of retailer's permits, the
19-19 remaining money may be appropriated to the comptroller for
19-20 administration and enforcement of Subchapters H, K, and N, Chapter
19-21 161, Health and Safety Code.
19-22 (d) If, after any appropriation is made under Subsections
19-23 (b) and (c), revenue remains from the sale of retailer's permits,
19-24 the remaining money may be appropriated to the comptroller to
19-25 administer the comptroller's responsibilities under Subchapter O,
19-26 Chapter 161, Health and Safety Code.
19-27 SECTION 4.03. Subchapter D, Chapter 154, Tax Code, is
20-1 amended by adding Section 154.1142 to read as follows:
20-2 Sec. 154.1142. DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
20-3 (a) A retailer is subject to disciplinary action as provided by
20-4 this section if:
20-5 (1) an agent or employee of the retailer commits an
20-6 offense under Subchapter H, Chapter 161, Health and Safety Code;
20-7 and
20-8 (2) the retailer, with criminal negligence, failed to
20-9 prevent the offense through adequate supervision and training of
20-10 the agent or employee.
20-11 (b) If the comptroller finds, after notice and hearing as
20-12 provided by this subchapter, that a permit holder has violated
20-13 Subchapter H or K, Chapter 161, Health and Safety Code, at a place
20-14 of business for which a permit is issued, the comptroller may
20-15 suspend the permit for that place of business or administratively
20-16 assess a fine as follows:
20-17 (1) if the permit holder has not been found to have
20-18 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
20-19 that place of business during the preceding 12 months, the
20-20 comptroller may require the permit holder to pay a fine in an
20-21 amount not to exceed $500;
20-22 (2) if the permit holder has been found to have
20-23 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
20-24 that place of business once during the preceding 12 months, the
20-25 comptroller may require the permit holder to pay a fine in an
20-26 amount not to exceed $750; and
20-27 (3) if the permit holder has been found to have
21-1 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
21-2 that place of business at least twice during the preceding 12
21-3 months, the comptroller may require the permit holder to pay a fine
21-4 in an amount not to exceed $1,000 or suspend the permit for that
21-5 place of business for not more than three days.
21-6 (c) Except as provided by Section 154.1143, if the permit
21-7 holder has been found to have violated Section 161.082(b), Health
21-8 and Safety Code, on four or more previous and separate occasions at
21-9 the same place of business during the preceding 12 months, the
21-10 comptroller shall revoke the permit.
21-11 (d) A retailer whose permit has been revoked under this
21-12 section may not apply for a retailer's permit for the same place of
21-13 business before the expiration of six months after the effective
21-14 date of the revocation.
21-15 SECTION 4.04. Subchapter D, Chapter 154, Tax Code, is
21-16 amended by adding Section 154.1143 to read as follows:
21-17 Sec. 154.1143. ACTIONS OF EMPLOYEE. (a) For purposes of
21-18 Subchapter H, Chapter 161, Health and Safety Code, and the
21-19 provisions of this code relating to the sale or delivery of
21-20 cigarettes or tobacco products to a minor, the comptroller may
21-21 suspend a permit but may not revoke the permit under Section
21-22 154.1142(c) if the comptroller finds that:
21-23 (1) the employer has not violated Section 161.082(b),
21-24 Health and Safety Code, more than seven times at the place of
21-25 business for which the permit is issued in the 24-month period
21-26 preceding the violation in question;
21-27 (2) the employer requires its employees to attend a
22-1 comptroller-approved seller training program;
22-2 (3) the employee has actually attended a
22-3 comptroller-approved seller training program; and
22-4 (4) the employer has not directly or indirectly
22-5 encouraged the employee to violate the law.
22-6 (b) The comptroller shall adopt rules or policies
22-7 establishing the minimum requirements for approved seller training
22-8 programs. On application, the comptroller shall approve seller
22-9 training programs meeting the requirements that are sponsored
22-10 privately or by public community colleges. The comptroller may
22-11 charge an application fee in an amount necessary to defray the
22-12 expense of processing the application.
22-13 (c) The comptroller may approve under this section a seller
22-14 training program sponsored by a permit holder for the purpose of
22-15 training its employees without regard to whether the employees are
22-16 located at the same place of business. This subsection applies
22-17 only to a permit holder who employs at least 100 persons at any one
22-18 time during the permit year who sell cigarettes or tobacco
22-19 products.
22-20 SECTION 4.05. Section 154.504, Tax Code, is amended to read
22-21 as follows:
22-22 Sec. 154.504. POSSESSION OF QUANTITIES LESS THAN INDIVIDUAL
22-23 PACKAGE. A person commits an offense and is subject to a $100 fine
22-24 if the person sells cigarettes in quantities less than an
22-25 individual package containing at least 20 cigarettes.
22-26 SECTION 4.06. (a) Section 155.049, Tax Code, is amended by
22-27 amending Subsection (b) and adding Subsection (g) to read as
23-1 follows:
23-2 (b) An application for a permit required by this chapter
23-3 must be accompanied by a fee of:
23-4 (1) $300 [$100] for a bonded agent's permit;
23-5 (2) $300 [$100] for a distributor's permit;
23-6 (3) $200 [$50] for a wholesaler's permit; [and]
23-7 (4) $15 for each permit for a vehicle if the applicant
23-8 is also applying for a permit as a bonded agent, distributor, or
23-9 wholesaler or has received a current permit from the comptroller
23-10 [treasurer] under Sections 155.041 and 155.048; and
23-11 (5) $180 for a retailer's permit.
23-12 (g) Notwithstanding Subsection (b)(5), an application for a
23-13 retailer's permit issued or renewed before September 1, 1999, must
23-14 be accompanied by a fee of $125. This subsection expires December
23-15 31, 1999.
23-16 (b) Section 155.049(c), Tax Code, is repealed.
23-17 SECTION 4.07. Section 155.058, Tax Code, is amended to read
23-18 as follows:
23-19 Sec. 155.058. REVENUE. (a) Except as provided by
23-20 Subsection (b), revenue [Revenue] from the sale of permits to
23-21 distributors, wholesalers, and bonded agents is allocated in the
23-22 same manner that other revenue is allocated by Subchapter H.
23-23 (b) Revenue from the sale of retailer's permits shall be
23-24 deposited to the general revenue fund and may be appropriated only
23-25 as provided by this section. The money may be appropriated first
23-26 to the comptroller for administration of licensing of retailers
23-27 under this chapter or Chapter 154.
24-1 (c) If, after any appropriation is made under Subsection
24-2 (b), revenue remains from the sale of retailer's permits, the
24-3 remaining money may be appropriated to the comptroller for
24-4 administration and enforcement of Subchapters H, K, and N, Chapter
24-5 161, Health and Safety Code.
24-6 (d) If, after any appropriation is made under Subsections
24-7 (b) and (c), revenue remains from the sale of retailer's permits,
24-8 the remaining money may be appropriated to the comptroller to
24-9 administer the comptroller's responsibilities under Subchapter O,
24-10 Chapter 161, Health and Safety Code.
24-11 SECTION 4.08. Subchapter C, Chapter 155, Tax Code, is
24-12 amended by adding Section 155.0592 to read as follows:
24-13 Sec. 155.0592. DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
24-14 (a) A retailer is subject to disciplinary action as provided by
24-15 this section if:
24-16 (1) an agent or employee of the retailer commits an
24-17 offense under Subchapter H, Chapter 161, Health and Safety Code;
24-18 and
24-19 (2) the retailer, with criminal negligence, failed to
24-20 prevent the offense through adequate supervision and training of
24-21 the agent or employee.
24-22 (b) If the comptroller finds, after notice and hearing as
24-23 provided by this subchapter, that a permit holder has violated
24-24 Subchapter H or K, Chapter 161, Health and Safety Code, at a place
24-25 of business for which a permit is issued, the comptroller may
24-26 suspend the permit for that place of business or administratively
24-27 assess a fine as follows:
25-1 (1) if the permit holder has not been found to have
25-2 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
25-3 that place of business during the preceding 12 months, the
25-4 comptroller may require the permit holder to pay a fine in an
25-5 amount not to exceed $500;
25-6 (2) if the permit holder has been found to have
25-7 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
25-8 that place of business once during the preceding 12 months, the
25-9 comptroller may require the permit holder to pay a fine in an
25-10 amount not to exceed $750; and
25-11 (3) if the permit holder has been found to have
25-12 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
25-13 that place of business at least twice during the preceding 12
25-14 months, the comptroller may require the permit holder to pay a fine
25-15 in an amount not to exceed $1,000 or suspend the permit for that
25-16 place of business for not more than three days.
25-17 (c) Except as provided by Section 155.0593, if the permit
25-18 holder has been found to have violated Section 161.082(b), Health
25-19 and Safety Code, on four or more previous and separate occasions at
25-20 the same place of business during the preceding 12 months, the
25-21 comptroller shall revoke the permit.
25-22 (d) A retailer whose permit has been revoked under this
25-23 section may not apply for a retailer's permit for the same place of
25-24 business before the expiration of six months after the effective
25-25 date of the revocation.
25-26 SECTION 4.09. Subchapter C, Chapter 155, Tax Code, is
25-27 amended by adding Section 155.0593 to read as follows:
26-1 Sec. 155.0593. ACTIONS OF EMPLOYEE. (a) For purposes of
26-2 Subchapter H, Chapter 161, Health and Safety Code, and the
26-3 provisions of this code relating to the sale or delivery of
26-4 cigarettes or tobacco products to a minor, the comptroller may
26-5 suspend a permit but may not revoke the permit under Section
26-6 155.0592 if the comptroller finds that:
26-7 (1) the employer has not violated Section 161.082(b),
26-8 Health and Safety Code, more than seven times at the place of
26-9 business for which the permit is issued in the 24-month period
26-10 preceding the violation in question;
26-11 (2) the employer requires its employees to attend a
26-12 comptroller-approved seller training program;
26-13 (3) the employee has actually attended a
26-14 comptroller-approved seller training program; and
26-15 (4) the employer has not directly or indirectly
26-16 encouraged the employee to violate the law.
26-17 (b) The comptroller shall adopt rules or policies
26-18 establishing the minimum requirements for approved seller training
26-19 programs. On application, the comptroller shall approve seller
26-20 training programs meeting the requirements that are sponsored
26-21 privately or by public community colleges. The comptroller may
26-22 charge an application fee in an amount necessary to defray the
26-23 expense of processing the application.
26-24 (c) The comptroller may approve under this section a seller
26-25 training program sponsored by a permit holder for the purpose of
26-26 training its employees without regard to whether the employees are
26-27 located at the same place of business. This subsection applies
27-1 only to a permit holder who employs at least 100 persons at any one
27-2 time during the permit year who sell cigarettes or tobacco
27-3 products.
27-4 ARTICLE 5. FEDERAL WAIVER; TRANSITION; EFFECTIVE DATE;
27-5 EMERGENCY CLAUSE
27-6 SECTION 5.01. (a) If, before the changes in law made by
27-7 this Act to Subchapter H or K, Health and Safety Code, take effect,
27-8 the comptroller determines that an exemption from federal
27-9 preemption from the federal Food and Drug Administration is
27-10 necessary for implementation, the comptroller shall request the
27-11 exemption and may delay implementing the affected provision of law
27-12 until the exemption is granted.
27-13 (b) If a provision of law affected by a delay in
27-14 implementation under Subsection (a) of this section contains a
27-15 criminal penalty:
27-16 (1) the comptroller shall publish in the Texas
27-17 Register notice of:
27-18 (A) the delay in implementation; and
27-19 (B) the grant of an exemption from preemption
27-20 requested under Subsection (a); and
27-21 (2) the provision takes effect on the 90th day after
27-22 the date that notice of the grant of an exemption is published
27-23 under Paragraph (B) of Subdivision (1) of this subsection.
27-24 SECTION 5.02. (a) Except as provided by Subsection (b) of
27-25 this section, this Act takes effect September 1, 1997.
27-26 (b) Sections 161.083, 161.085, and 161.086, Health and
27-27 Safety Code, and Subchapter N, Chapter 161, Health and Safety Code,
28-1 as added by this Act, take effect January 1, 1998.
28-2 (c) The change in law made by this Act applies only to an
28-3 offense committed on or after the effective date of this Act. For
28-4 purposes of this subsection, an offense is committed before the
28-5 effective date of this Act if any element of the offense occurs
28-6 before that date. An offense committed before the effective date
28-7 of this Act is governed by the law in effect when the offense was
28-8 committed, and the former law is continued in effect for that
28-9 purpose.
28-10 (d) This Act applies to the sale or distribution of coupons,
28-11 cigarettes, or tobacco products on or after the effective date of
28-12 this Act. The sale or distribution of a coupon, cigarette, or
28-13 tobacco product before the effective date of this Act is governed
28-14 by the law in effect when the sale or distribution was made, and
28-15 that law is continued in effect for that purpose.
28-16 (e) The increase in the amount of a fee as provided by
28-17 Section 154.111 or 155.049, Tax Code, as amended by this Act, takes
28-18 effect for and is applicable to the permit years beginning on or
28-19 after March 1, 1998, and June 1, 1998, as applicable.
28-20 SECTION 5.03. Notwithstanding any other law, the
28-21 implementation and execution of the programs established by the
28-22 change in law made by this Act are contingent on the availability
28-23 of funds for those programs, as determined by the comptroller,
28-24 from:
28-25 (1) the permit fee imposed on retailers under Chapters
28-26 154 and 155, Tax Code, as amended by this Act; and
28-27 (2) the fee on outdoor advertising of cigarette and
29-1 tobacco products imposed under Subchapter K, Chapter 161, Health
29-2 and Safety Code, as amended by this Act.
29-3 SECTION 5.04. The importance of this legislation and the
29-4 crowded condition of the calendars in both houses create an
29-5 emergency and an imperative public necessity that the
29-6 constitutional rule requiring bills to be read on three several
29-7 days in each house be suspended, and this rule is hereby suspended.